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Only The Guilty Go Quietly To The Gallows.

The monstrous machine we call the criminal
justice system is in dire need of repair, as anyone who has been subjected
to its perverse operations will attest. Even the engineers, builders and
operators of the machine -- who gorge themselves on the blood-drippings
that pool beneath the machine’s ever grinding cogs -- admit it is crippled
and barely functioning; churning out verdicts that are shockingly
inconsistent and grossly unjust. Such verdicts reek of an overwhelming
stench. Examples abound: the State of Illinois has pardoned all her
death row inmates because, ever more frequently, D.N.A. evidence is
proving her death row inmates innocent (numerous other states are in the
process of enacting similar moratoriums); a Reno, Nevada, man was recently
freed from twenty years on death row after it was uncovered that
prosecutors concealed exculpatory evidence; a rogue Los Angeles,
California, police squad has been found to have falsified reports, given
perjured testimony, stolen drugs from departmental evidence lockers, and
attempted murder upon innocent citizens, ad nauseam; in San Diego,
California, a one time Assistant U.S. Attorney (now magistrate judge) has,
after ten years of denials, concealments, and perjuries, been implicated
in the fabrication and mis-marking of a tape recording that he secretly
offered to the trial judge so as to falsely entangle the accused in a
bogus murder plot; and a few months ago a Boston, Massachusetts, a man
walked out of prison after thirty-three years upon the presentation of
evidence proving that the Federal Bureau Of Investigation allowed him to
be framed for a murder planned and executed by two F.B.I. informants (in
fact, the F.B.I. had full knowledge, prior to the murder, of the
informants’ plans). Moreover, hardly an individual escaped the trial of
the century; State Of California versus O.J.Simpson, after which legal
luminaries and the lay public alike clamored for overhauling the crippled
machine. The clamoring of the masses was omnipresent in newspaper
editorials, magazine articles, and on call-in radio shows and television
specials. The din was equally loud and warranted from both sides of the
Simpson verdict. Pro-guilt advocates screamed that the not guilty verdict
was itself prima facie evidence of a grossly flawed system (incompetent
state agents, a "fixed" prosecution in favor of the celebrity, and failure
to convict despite pools of D.N.A. evidence). On the other hand,
pro-innocence supporters pointed to a plethora of travesties and
corruption within the same system (rush to judgment, perjured police
testimony and planted evidence). Alas, there are innumerable, present and
past instances of the machine having taken the raw materials of truth and
justice and mangling them into an unrecognizable product. Surely, the
young and beautiful Eliza Fennin, hanged in England on 27 July, 1815, was
one such victim. Eliza’s innocent blood dripped from the cogs of a machine
as defective in days of yore (guilt found by a judge in-the-pocket of her
accusers) as it is crippled and barely functioning in the present
age.

The urgency of the situation cannot be
overstated, nor can it be ignored any longer. The repairs suggested herein
must be made expeditiously if we hope to ever reestablish the criminal
justice system of the United States as the model for all other nations; a
machine that produces verdicts which are consistent, just and free of
stench. Four repairs are critical.

I

The first repair must be the abolishment of
the immunity that protects all prosecutors. At present, prosecutors are
protected from personal liability for their acts while executing their
duties. Only under nearly impossible circumstances can a prosecutor be
sued, and then any judgment would be paid by the government body employing
him (tax dollars). Hardly the ruinous liability faced by all other
professionals. The absurdity of immunity has not always been the
norm.

In fourteenth century England prosecutors
used torture to extract confessions. However, if a confession could not be
extracted and the accused was later acquitted, the prosecutor then
suffered the same torture that had been inflicted upon the innocent
citizen. No one (save a few overaggressive prosecutors) is advocating the
return of torture as a prosecutorial tool, but the message concerning
personal liability is clear. Curiously, this present wash of immunity so
taken for granted by prosecutors does not bathe any other professional.
Doctors, stock brokers, construction contractors, and all other
professionals are subject to civil and criminal liability for their
actions. Not only can a malicious doctor or unscrupulous contractor suffer
ruinous financial judgments and loss of license, but he can also be
subject to criminal prosecution and incarceration. Not so the malicious or
unscrupulous prosecutor who is protected by statutes and decisions of the
United States Supreme Court. The reality of civil and criminal liability
encourages all other professionals to conduct their business affairs to
the highest ethical and legal standards. Amazingly, the murky world
inhabited by prosecutors does not include that reality; in their world a
bizarre fantasy has taken hold. That fantasy, brazenly promoted by the law
makers, courts and prosecutors, would have you believe that prosecutors
will not be zealous advocates if they are subject to those liabilities
faced by all other professionals. However, mere zealousness is not the
problem. In the case of Bateman v. United States Postal Service,
231 F.3d 1220, 1222 (9th Cir.2000) (dicta) (amending Opinion filed at 291
F.3d 1029, 1031 n.2 (9th Cir.2000)), the Court Of Appeals expressed their
plaint opinion that over-aggressiveness is being equated with zealous
advocacy, and attorneys are expected to win at all costs, but ... "at the
risk of sounding naive or nostalgic, we lament the decline of collegiality
and fair-dealing in the legal profession today, and believe courts should
do what they can to emphasize these values." Notwithstanding the Ninth
Circuit’s opinion, prosecutors rave that personal liability would have a
chilling affect on them. A most bizarre fantasy, to be sure. Indeed, if
such a fantasy were reality immunity would cleanse all professionals. To
any objective person it is intellectually incoherent to argue that
immunity encourages ethical or legal integrity. To the contrary, an
overaggressive professional protected by immunity is fit for perfidies,
stratagems and illegalities of the most egregious sorts imaginable, as the
IL, NV, CA, and MASS, cases, observed above, prove. Real world liability
would have a chilling affect only upon the malicious or unscrupulous
prosecutors. Quite the opposite of being chilled, prosecutors stripped of
their immunity would ensure prosecutions and verdicts free of the stench
that now reeks from beneath the machine. Corrupted and perverted
prosecutions would be virtually eliminated. There would be no more rush to
judgment, no more withheld evidence, no more perjured testimony, no more
fabricated evidence secreted to judges, and no more framing of innocent
citizens. A prosecutor facing the reality of liability -- loss of assets,
garnishment of wages, loss of license, and equal or greater incarceration
as the unjustly convicted -- would not be chilled from zealous advocacy,
but from perfidies, stratagems and illegalities. The machine would run
smoothly, efficiently and justly. Prosecutors of the highest ethical and
legal conscience would flourish. Additionally, the elimination of spurious
prosecutions would free up prosecutor-hours for the truly virtuous cases,
resulting in substantial savings of scarce court resources and tax
dollars. Appeals would be rare.

It is time to remove the diaper of immunity,
which only encourages the soiling of the machine by misconduct of the most
egregious sorts; shocking the conscience of civilized society by
convicting, incarcerating and executing innocent citizens. Prosecutors
should be made accountable and liable for their actions, on equal basis as
all other professionals. The first repair must be the abolishment of the
immunity that is as taken for granted as it is abused by malicious and
unscrupulous prosecutors.

II

The next repair focuses on the ill-fated
practice of retrials. It occurs that a case is retried multiple times,
earlier trials having succumbed to a conclusion other than conviction.
Such conclusions occur, for example, from mistrials either because of an
aborted trial (prosecutorial misconduct or procedural error) or the jury
being unable to agree upon the guilt or innocence of the accused ("hung
jury"). Aborted trials may warrant examination on a case-by-case basis,
but not so the hung jury cases. Simply put, when a jury hangs by failing
to convict, that is de facto reasonable doubt as to the accused’s guilt.
Innocence extant. Due to the manifold unfairness to the accused, Due
Process protections should bar any retrial.

At retrial the defendant’s case is virtually
unchanged ("I didn’t do it."). However, between trials, the prosecutor
seizes the opportunity to interrogate jury members, rework
witnesses, tamper with evidence, and sneakily rearrange and manipulate his
case. Prosecutors often stonewall between trials, waiting, for example,
for the defendant to become a victim of the months and years of
languishing in the local county dungeon, eventually willing to plead
guilty to any crime just to escape that horrible environment. The
prosecutor may be stalling until defense counsel becomes overburdened with
other cases, or the scheme may be as sinister as waiting for the defendant
to run out of money so that he can no longer afford any defense. While
the defendant is going bankrupt, the prosecutor soars aloft on the
updraft of an unlimited budget. That budget is filled by taxpayers’
dollars and backed by government printing presses. Although you have never
heard of a prosecution being terminated due to the government running out
of money, there are plentiful examples of defendants pleading guilty due
to no other reason other than the fact of impending bankruptcy to himself
and/or family members whom are helping with his expenses. Such
prosecutorial contrivances rise like a miasma to overwhelm the sweet
scented ideal expressed by justices of the Ninth Circuit Court Of Appeals:
"The prosecutor, as the agent of the people and the State, has the unique
duty to ensure fundamentally fair trials by seeking not only to convict,
but also to vindicate the truth and administer justice." See, Thompson
v. Calderon, 120 F.3d 1045, 1058 (9th Cir.1997).

In the early-to-mid 1990s the nation
witnessed the violations attendant to multiple trials in the two trials of
the Menendez brothers for the shooting deaths of their parents in a tony
suburb of Los Angeles. At the first trial the brothers retained worthy
advocates, investigators and expert witnesses, thus were able to realize
the Due Process protections guaranteed to every citizen by the Fifth
Amendment of the Bill Of Rights. That trial resulted in a hung jury. The
second trial resulted in the annihilation of those protections. Out of
money, the brothers were unable to pay the fees and expenses of their
advocates, investigators and expert witnesses (who moved on to clients
able to pay), and were forced to accept representation provided by the
State Of California. History shows that the brothers were convicted at the
second trial and subsequently received prison sentences of life without
the possibility of parole. The second trial was not a question of guilt or
innocence, but of defendants squashed under the power and wealth of the
State. Were they guilty? The evidence would suggest so. Did they receive
Due Process? Not the second time around. Prosecutors use their financial
omnipotence to literally tighten the rope around the accused’s
neck.

The oft spoken nonsense is that the accused
is innocent until proven guilty. In fact, studies indicate that 66% of
jurors believe, before the first word is spoken or piece of evidence
introduced, that the accused is guilty. To have a properly operating
machine the concept of innocent until proven guilty must have bite. This
writer suggests that when a prosecution fails to obtain a guilty verdict
on the first attempt (hung jury) then the Double Jeopardy Clause of the
Fifth Amendment should bite down to prohibit any retrial. When a jury
deadlocks, is that proof of reasonable doubt? Absolutely! When guilt has
failed to be proven, then innocence remains (staggering perhaps, but still
standing), and any retrial should be barred. A one trial limit would force
prosecutors to abandon what are commonly referred to as joy ride cases,
that is, cases of gossamer evidence, iffy legal foundation, necessary
elements of the crime absent, cases that never can be won on merit, but
only by scheming and manipulation.

When guilt is not proven on the first
attempt, then the jaws of Double Jeopardy should lock down to prohibit any
retrial.

III

The third repair to the machine will be
denounced by prosecutors as nothing less than blasphemous. Prosecutors
will scream that this repair will shut off their professional life-blood;
their ability to convict [the innocent]. The machine must be repaired to
eliminate any form of payment, reward, benefit, compensation or other
inducement (hereinafter referred to as "payment") paid to cooperating
government witnesses (co-conspirators, rats, snitches, jailhouse
informants and their ilk) (hereinafter referred to as "government
agent").

It is a sickening aspect of the machine that
courts throughout this nation blatantly acknowledge that no practice is
more ingrained in the criminal justice system than that of the government
calling upon a witness to testify under a deal of immunity, reduced
incarceration or other payment; a foul and improper arrangement calculated
to produce a wrongful conviction. "Never has it been more true than it is
now that a criminal charged with a serious crime understands that a fast
and easy way out of trouble with the law is to cut a deal at someone
else’s expense and to purchase leniency from the government by offering
testimony in return for immunity, or in return for reduced
incarceration."See, Commonwealth Of The Northern Mariana
Islands v. Bowie, 236 F.3d 1083, 1095-96 (9th Cir.2OO1). There are few
scenarios more repugnant than Sammy "The Bull" Gravano being embraced by
the government in exchange for his testimony against John Gotti. Gotti
killed no one. Gravano murdered at least nineteen. Gotti received life in
prison (no parole), while Gravano was paid with near immediate freedom,
upon which he reentered the illicit drug trade and the victimization of
the citizenry (presently facing State Of Arizona and federal drug
trafficking charges; perversely, all his defense costs are being paid by
the United States government). In addition, we have to question whether
Gravano told the truth, the whole truth and nothing but the truth. There
are innumerable examples of scripted, false and perjurious
testimony being squeaked out of government agents for far less payment
than Gravano received, as well as abundant instances where bought and paid
for government agents have fabricated alleged confessions, which they then
peddled for their handlers in exchange for negotiated payment. In the San
Diego case, mentioned above, the generously rewarded government agent
worked hand-in-hand with the prosecutor to produce a fabricated tape, and
later provided scripted and perjured testimony to frame the defendant.
"Few things are more repugnant to the constitutional-expectations of our
criminal justice system than covert perjury, and especially perjury that
flows from a concerted effort by rewarded criminals to frame a defendant."
Commonwealth, at 1087. Despite their inherent penchant for crime,
government agents are routinely set free as payment for their cooperation.
Upon release, Gravano established a nationwide Ecstasy drug operation.
And, immediately following his release, the San Diego government agent
embarked on a coast to coast credit card swindle. Worse yet, common
practice, as in Gravano’s cases and the San Diego government agent’s
cases, is for the government to act as savior regardless of the number
and/or severity of the government agent’s recurring criminal activity. The
cycle of crime, mouthpiece, payment, and recurring victimization of the
citizenry is encouraged to repeat itself over and over, because
prosecutors care less for the cycle of crime and victimization they
promote than they do about winning cases. A vile quid pro quo
arrangement.

At trial jurors are easy prey of the
prosecutor and government agent team message. Prosecutors weave a fanciful
tale of the government agent’s rehabilitated credibility, while the
government agent looks each juror in the eyes and tells how he has turned
over a new leaf, he is testifying because, gosh, that is what any good
citizen would do. The team message is presented that regardless of the
government agent’s criminal history (murders, drug dealing, swindling
savings from elderly citizens, etc.), pending charges or perverse deals
made for his cooperation, he is, for the first time in his life, telling
the truth.. Naturally, jurors would be repulsed at the thought of buying a
used car from such despicable characters, and horrified by the mere idea
of leaving an infant in the care of such villains. Nonetheless, those same
jurors embrace the team message as if gospel; as if oblivious to the
obvious agenda. Indeed, by the time the jury convicts the defendant the
government agent has been set free, with a slap on the back and sly wink
from the prosecutor, ready to embark on his next-- tacitly or otherwise,
government sanctioned. -- criminal enterprise. For the government agent
testifying is a negotiable commodity, and the more fanciful the story
telling the greater the payment. A government agent would sell his little
sister into an oda for another opportunity at freedom and the
victimization of truly good citizens. Good citizens, on the other hand,
are penalized in giving their truthful testimony. Good citizens lose work
and wages, their economic and emotional well being severely impacted. They
are subpoenaed, threatened with contempt of court orders and imprisoned if
they do not freely give up their truthful testimony. Government agents get
paid for their fabrications, perjuries and frame-ups.

Other professionals understand that
purchasing information is both unethical and a perilous proposition. To
professional writers, paying a source to talk is known to taint that
sources information. Writers realize that when you pay someone to talk,
that person then has a motive to tailor his information to suit the buyer.
Prosecutors are unconcerned whether the information is tainted -- indeed,
purchasing testimony tailored to the script is what they lust for -- and
continue to purchase testimony from government agents and their ilk. As
the Gravano and San Diego cases illustrate, government agents will do and
say anything, regardless how false, immoral or illegal to get their
cheese. When testimony is bought, truth is compromised. "A prosecutor who
does not appreciate the perils of using rewarded criminals as witnesses
risks compromising the truth-seeking mission of our criminal justice
system." See, United States v. Bernal-Obeso, 989 F.2d
331, 333-34 (9th Cir.1993).

There is no defense to the practice of
prosecutors who, by inducements of rewards and benefits, encourage
fabrication, perjury and the framing of innocent persons. Nor is there any
excuse for jurors who blind themselves to the obvious. The machine must be
repaired to prohibit the government from purchasing testimony.

IV

The Public Defender experiment fails
miserably due to the deliberate actions of law makers and the courts to
ensure a skewed playing field. It comes down to resources; unlimited for
the government, severely restricted for the Public Defender. In analogy,
the prosecution constructs the gallows with unlimited lumber, hardware and
manpower, while the Public Defender struggles with an escape plan
consisting of a plastic spoon, a bit of string and not enough hours in the
day.

In a typical prosecution the government
might spend $40,000 to $60,000, while the Public Defender--necessitating
equal expenditures -- would be lucky to be allocated an insignificant
fraction of that amount. Due to the courts tight reins on the purse
strings the Public Defender, therefore, is unable to marshal resources,
conduct investigations, or adequately prepare for trial; scientific
testing of evidence is nearly impossible, experts cannot be afforded,
neither for consultation or as witnesses. Too few Public Defenders
stretched between too many cases. Three repairs would level the playing
field: (1) hire at least the same number of Public Defenders as
prosecutors; (2) pay Public Defenders the same salaries as their
prosecution counterparts, so that the quality of advocates on both sides
will be comparable and, most importantly, (3) provide equal funds to the
defense as are lavished upon the prosecution. If the government averages
$50,000 on a typical case, then, at least, that same amount should be
provided to the defense (with additional funds available upon a showing of
need). Without a leveling of the playing field the accused has but a minim
of hope of escaping the gallows.

The playing field should be level in
manpower, quality of advocate and financial resources.

CLOSING

Fifty years ago the United States Supreme
Court observed that convictions procured by conduct such as that exposed
above "do[es] more than offend some fastidious squeamishness or private
sentamentalism about combating crime too energetically. This is conduct
that shocks the conscience." See, Rochin v. California, 342 U.S.
165, 172 (1951). The ends-justifies-means over-aggressiveness of today’s
prosecutors is contrary to their duty to uphold the Constitution.
Prosecutors have clearly lost touch with the ideal that they are "the
representative … of a sovereignty whose obligation to govern impartially
is as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but
that justice shall be done… [and] while he may strike hard blows, he is
not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one." See, Berger v.
United States, 295 U.S. 78, 89 (1935), overruled on other grounds in
Stirone v. United States, 361 U.S. 212 (1960).